Category Archives: Google Diaries

You can’t make this up. Law 360 is reporting that the International Trade Commission (ITC) has been denied authority over digital goods.

The Federal Circuit said Thursday that it wouldn’t reconsider its decision that the International Trade Commission lacks the authority to block the import of digital files, drawing a lengthy dissent from one of its judges.

Keep in mind, the same people now opposed to the ITC having this authority are the same who argued in favor of the the ITC doing so as an alternative to SOPA called the Open Act.

When advocating for the OPEN Act as a good alternative to SOPA and the PROTECT IP Act, the bill’s sponsors touted the ITC as being a great venue for tackling the problems of foreign rogue sites. Among the claimed virtues were its vast experience, transparency, due process protection, consistency, and independence:

For well over 80 years, the independent International Trade Commission (ITC) has been the venue by which U.S. rightsholders have obtained relief from unfair imports, such as those that violate intellectual property rights. Under Section 337 of the Tariff Act of 1930 – which governs how the ITC investigates rightsholders’ request for relief – the agency already employs a transparent process that gives parties to the investigation, and third party interests, a chance to be heard. The ITC’s process and work is highly regarded as independent and free from political influence and the department already has a well recognized expertise in intellectual property and trade law that could be expanded to the import of digital goods.

The Commission already employs important safeguards to ensure that rightsholders do not abuse their right to request a Commission investigation and the Commission may self-initiate investigations. Keeping them in charge of determining whether unfair imports – like those that violate intellectual property rights – [sic] would ensure consistent enforcement of Intellectual Property rights and trade law.

Some of the groups now arguing that the ITC shouldn’t have jurisdiction over digital goods openly supported the OPEN Act. Back in late 2011, the EFF stated that it was “glad to learn that a bipartisan group of congressional representatives has come together to formulate a real alternative, called the OPEN Act.” The EFF liked the bill because the “ITC’s process . . . is transparent, quick, and effective” and “both parties would have the opportunity to participate and the record would be public.” It emphasized how the “process would include many important due process protections, such as effective notice to the site of the complaint and ensuing investigation.”

Google likewise thought that giving the ITC jurisdiction over digital goods was a great idea. In a letter posted to its blog in early 2012, Google claimed that “there are better ways to address piracy than to ask U.S. companies to censor the Internet,” and it explicitly stated that it “supports alternative approaches like the OPEN Act.” Google also signed onto a letter promoting the virtues of the ITC: “This approach targets foreign rogue sites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established International trade remedies to bear on this problem.”

Apple Computer announced today that for it’s Itunes Music Store to remain competitive in the digital distribution marketplace for music they would be changing their retail pricing of album downloads to one dollar and song downloads to 10 cents each. The pricing change will be effective on black Friday for this holiday season. “Since we purchased Beats music and are competing directly with Spotify we recognized the need for more competitive pricing structures based on what consumers may be willing to pay”, an Apple spokesman said. He continued, “Spotify has proven that as long as we’re paying 70% of gross, the retail pricing is irrelevant, irrelevant! We are even contemplating 10 cent albums and one cent songs to further achieve parity with music streaming services!”

Record label executives rejoiced in the move as one source exclaimed,” I don’t know why we didn’t think of reducing the retail price of downloads by 90% years ago. It’s still money, right? It’s so simple that this is really the only way to grow the business to $100b annually while competing with piracy.”

Sunday’s Washington Post featured a story, “Google, once disdainful of lobbying, now a master of Washington influence” that examined the company’s rise to become a top dog among Washington influence peddlers. For Google watchers revelations in the piece, authored by Tom Hamburger and Matea Gold, come as no surprise. However, for those who continue to regard Google as the web’s guardian angel of “free speech,” the story should add a bit of tarnish to its halo, illuminating the company’s extensive back-door maneuverings — the new normal in DC’s world of political puppeteering.

So Google shill Marvin Ammori wrote an Asperger’s ridden anti-copyright, anti-artist tirade on Slate. Of course in doing so Marvin failed to represent his past and current affiliations to Google. Slate, to their credit amended the rant with the following:

Update, March 11, 2014: Disclosure: The author represented Google and other companies fighting SOPA/PIPA in 2011 and 2012. He currently represents Google and other companies on several issues, including copyright reform. These views are his own.

And so, we present the brilliant rebuttal to Google’s disingenuous attack on the rights of individual creators and artists by Kurt Sutter.

Not-So-Zen and the Art of Voluntary Agreements Google’s anti-copyright stance is just a way to devalue content. That’s bad for artists and bad for consumers. By Kurt Sutter

It’s so absurd that Google is still presenting itself as the lovable geek who’s the friend of the young everyman. Don’t kid yourself, kids: Google is the establishment. It is a multibillion-dollar information portal that makes dough off of every click on its page and every data byte it streams. Do you really think Google gives a shit about free speech or your inalienable right to access unfettered content? Nope. You’re just another revenue resource Google can access to create more traffic and more data streams. Unfortunately, those streams are now pristine, digital ones of our work, which all flow into a huge watershed of semi-dirty cash. If you want to know more about how this works, just Google the word “parasite.” And if you think I’m exaggerating, ask yourself why Google spends tens of millions of dollars each year to hire lawyers and lobbyists (like Marv) whose sole purpose is to erode creative copyright laws.

Do they do this because they hate artists? No. They do it because they love money.

It’s also clear that, after Schmidt joined Apple’s (AAPL) board of directors, Android magically evolved from a BlackBerry-like device with a physical keypad into essentially an iPhone clone with a virtual keypad and multitouch display.

Right up until the Federal Trade Commission forced him off Apple’s board in 2009, Schmidt maintained that Google was not really a competitor to Apple’s iPhone. Of course, Google followed Apple’s next breakthrough device, the iPad, with Android tablets which, presumably, weren’t competitors either.

You just can’t make this stuff up.

There’s so much more in the Fox story it really is endlessly fascinating, and not that we’re surprised.

Besides having founders and top executives with the ethical flexibility to stab one of its closest partners in the back with a classic bait-and-switch while disingenuously attempting to maintain a superior moral high ground, there’s even more evidence that Google is the most evil tech company since Microsoft was, back in the day.

It now appears inevitable that, at some point, Google will know more about you than you do. If you’re at all concerned about privacy, forget the NSA; it’s Google you should be worried about.

Like this:

Never wanting to lose an opportunity to be bizarrely two-faced, Google is sending around a little graphic today to all you GMail users implying that stopping SOPA in January of 2012 actually enabled creativity to continue to thrive on the Web. Never mind that nothing in SOPA could have stopped you or me or any other would-be creator from uploading our works, ideas, or captured events to the Web; that’s just pesky reality.

But Google isn’t satisfied just to effect public policy in its own interests, it also wants to behave like the abusive and negligent father, who creepily shows up with a smile and a hug when his kid wins an award or becomes famous.

After all, this week isn’t just the anniversary of SOPA Blackout Day, it’s also the week Google received its 100 millionth takedown notice from recording artists who would rather not have their works exploited without permission or compensation. So, the whole, “we protected creativity together” message just kinda makes the skin crawl. Y’know?

Even if you discount the moral hazard involved with funding a study of yourself, the Google survey of Google’s involvement with piracy is a breathtaking document. I would suggest that the self-study rests on a number of core principles for Google’s business:

1. Nothing to See Here, Move Along: First and foremost is Google’s deep and abiding desire to deflect criticism in the press, avoid civil lawsuits and settle criminal investigations. It has both succeeded and failed at all three. The fact that a company tries to avoid these things is not special; the degree to which Google tries to manage them is quite special.

The self-study is itself an exercise in all three and supports the most important public perception that Google draws on daily to succeed in its consumer facing business: Sympathetic trust. To paraphrase an old California pol, you know all the bad they’ve done, but you like them anyway.

This magical thinking only lasts for so long. Whether its Eric Schmidt’s New York soundproof man-cave from which no scream can emerge, doing a favor for journalist Tom Brokaw by providing a private jet for a Silicon Valley speaking engagement with jet fuel subsidized by the American taxpayer, siphoning piles of data to the National Security Agency under circumstances the average citizen will probably never learn the details of, or paying a $500,000,000 fine for violating the Controlled Substances Act for indiscriminately promoting the sale of prescription drugs (e.g., to addicts and kids), the press and the public is starting to wake up to the game.

And not just the game, but the magnitude of the game. As a senior chief once said, sorry pal, the BS filter is full.

Like this:

Claiming to be a “leader” in the fight against piracy is Google’s first mistake

This past week Google issued a report, “How Google Fights Piracy,” in which the tech giant attempts to explain what a great job it’s doing leading battle against online piracy. After reading it I think a more accurate title would be “Why Google Shouldn’t Have to Fight Piracy Because it Offers so Much Other Good Stuff.”

In an effort to burnish their tarnished image, the authors resort to repeating well-worn and disingenuous Google-spawned memes (which I’ve repeatedly deconstructed on this blog). These include:

* YouTube makes money for artists so there’s no need to provide a transparent accounting

* DMCA abuse is a considerable problem Search is “not a major driver of traffic to pirate sites”

* Google is committed to “rooting out and ejecting rogue sites” from AdSense

We’ve been watching with interest a story developing over at Digital Music News. The site ran a guest editorial by Jeff Price promoting his new YouTube Content Management System Collections Service, Audiam.

It’s interesting to note how Price targets distribution companies as the black hats but does not criticize YouTube for their less than stellar “Openess and Transparency” with artists. East Bay Ray of The Dead Kennedys spoke to NPR about his frustrations with Google.

“Holiday in Cambodia” by the punk band Dead Kennedys has been streamed on YouTube over 2.5 million times. Guitarist Raymond Pepperell — also known as East Bay Ray — says, overall, Dead Kennedys videos have been watched about 14 million times. But the band has only seen a few hundred dollars.

“I don’t know — and no one I know knows — how YouTube calculates the money”

It’s easy to see why so many readers took exception to Price’s understanding of how YouTube monetization works (or actually doesn’t). One of those people wrote a response to Price’s editorial, Emmanuel Zunz of ONErpm.

If I understand Audiam’s business model correctly (I have tested the service), it’s a pure Content ID play. So here is my first point: Audiam states that they pay artists 100% of the revenues they collect for them from their own channel. But by generating UGC claims on their channels that pay out at 35% instead of the Standard 55% an artist can get on their own, they are actually reducing the amount of money a musician can make through a Standard direct deal with YouTube.

What follows is the real story about the lack of transparency and openess that Google claims is essential to a “free and open” internet. You know, the kind of “free and open” internet where you make the music, movies, books, photos, etc and Google is “free and open” to monetize it without restriction. “Permissionless Innovation” yo!

So apparently when Zunz was being transparent and open (um, without permission) about Google/YouTube payments and policies in his response to Price he got a little to close to home in revealing Google family secrets. The result was a panicked Zunz contacting Digital Music News to remove, retract and/or otherwise redact the information that Zunz had made public. Oooopsies…

According to ONErpm, YouTube has demanded that the entire guest post – here – be ripped down, which would obliterate nearly 100 comments and the knowledgebase that comes with that (not to mention the detailed information in the post itself).

But the story doesn’t end there. Zunz had already written a second a highly detailed post for Digital Music News detailing how YouTube monetization actually works! Unfortunately that “Open and Transparent” post is not going to see the light of day in educating musicians about the actual mechanics, percentages and payments by YouTube.

Despite serious threats, YouTube has been unsuccessful at removing an earlier article on Digital Music News about confusing royalty payouts and specifics. But what they have been successful at is preventing the next one: a4,000+ word, highly-detailed essay on YouTube best practices and royalties, from a company highly-specialized in YouTube distribution.

The company simply got spooked, and asked that we not print the piece for fear of having their MCN status revoked by YouTube. So here’s what artists, labels, publishers, startups, and the industry is missing as a result.